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A rise in Pre-Nuptial Agreements?

View profile for Pamela Donnellan
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Arguably, once seen as the preserve of the rich and famous, Pre-Nuptial Agreements or “Pre-Nups” as they are often referred to are becoming increasingly common, particularly in the context of people getting married or entering into civil partnerships later in life when they have already accrued a significant ‘pot’ of assets, or entering into a second marriage after divorce and are keen to try and protect those assets should their subsequent marriage or civil partnership end. The main purpose of a Pre-Nuptial Agreement is to set out the basis on which the couple will divide assets if this happens.

Though seen by some as “unromantic” or perhaps even putting a “curse” on a marriage or civil partnership, more people are considering entering into a Pre-Nuptial agreement before marriage. According to the Office for National Statistics in 2012, it is estimated that 42% of marriages in England and Wales end in divorce, 34% by the 20th wedding anniversary, so it is understandable why many are taking action.

In February 2014, a Law Commission report on the topic recommended that pre-marital agreements should be considered legally binding. This isn’t the case yet but perhaps in the future they will be recognised as such.

Despite Pre-Nuptial Agreements not currently being considered as legally binding, the court may, in certain circumstances, take one into consideration as evidence of the parties’ intentions following the breakdown of a marriage or civil partnership.

What can you do, as far as you are able, to make sure that the court will take a Pre-Nuptial Agreement into account in the event of your marriage or civil partnership breaking down?

It is important that:

  • There is full disclosure of your respective financial circumstances, or at the very least there is evidence to show you each have a working knowledge of your respective financial circumstances
  • You have both taken independent legal advice on your positions before the agreement is signed, or, at the very least it is documented that you have been provided with the opportunity to do so and have chosen not to
  • The agreement is not entered into under pressure
  • It is signed before the marriage with there being sufficient time between the signing of the agreement and the intended marriage/civil partnership for you both to consider and reflect on the content of the agreement being made. There must be a minimum of 28 days between the date of the Pre-Nuptial Agreement and the date of the marriage or civil partnership. However, we would suggest a period of at least 6 weeks before the date of your marriage or civil partnership

If you would like any further information about Pre-Nuptial Agreements please get in touch with a member of our Family Team.